R.M. v. Toronto Police Services Board, 2013 HRTO 73

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.M.

Applicant

-and-

Toronto Police Services Board, William Blair, Brian Kellar, Christopher Groff, Michael Thomson and Peter Eckersall

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 15, 2013

Citation: 2013 HRTO 73

Indexed as: R.M. v. Toronto Police Services Board

APPEARANCES

R.M., Applicant

Selwyn A. Pieters, Counsel

William Blair, Brian Kellar, Christopher Groff and Peter Eckersall, Respondents

Lisa C. Cabel, Counsel

Toronto Police Services Board, Respondent

David A. Gourlay, Counsel

Michael Thomson, Respondent

David A. Whitten and Ellen A.S. Low, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 16, 2010, alleging discrimination with respect to services, goods and facilities because of race, colour, ancestry, ethnic origin, age and association with a person identified by a prohibited ground of discrimination.

2In addition to the Toronto Police Services Board (the “TPSB”), the Application names the following individual respondents: Police Chief William Blair, and Police Constables (“PCs”) Brian Kellar, Christopher Groff and Peter Eckersall (the “Respondent Officers”); and, Michael Thomson, an employee of a company providing security services.

3As summarized in an earlier Interim Decision dated February 25, 2011, 2011 HRTO 410, the applicant alleges, in essence, that the respondents engaged in racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. The Application refers to the following events in his Application:

a. His arrest by police on October 29, 2007 (involving PC Kellar);

b. His arrest by police on January 29, 2008;

c. An incident at the Cedarbrae Mall on December 18, 2009; and,

d. His arrest by police on January 5, 2010 (involving PCs Groff and Eckersall).

4The respondents have all filed Responses to the Application, denying the allegations of discrimination.

5This Interim Decision addresses a request by the applicant to amend the Application and provides further directions to the parties.

Relevant procedural background

6The respondents, TPSB and Michael Thomson, filed Responses to the Application on November 9, 2010.

7In an earlier Interim Decision dated November 26, 2010, 2010 HRTO 2349, the Tribunal granted the Respondent Officers an extension of time to file a Response, pending court proceedings to obtain access to records relating to the applicant that are subject to the Youth Criminal Justice Act, S.C. 2002, c.1 (the “YCJA”).

8On February 14, 2011, the Respondent Officers filed a Request for an Order During Proceedings (“RFOP”) to strike portions of the Application on the basis of delay. On February 17, 2011, the applicant filed submissions in response to this RFOP.

9In its earlier Interim Decision dated February 25, 2011, 2011 HRTO 410, the Tribunal dismissed the Respondent Officers’ RFOP to strike portions of the Application on the basis of delay, without prejudice to their ability to raise timeliness issues at a later stage of the proceeding. In particular, the Tribunal stated, in part, as follows at paragraph 10 of its Interim Decision:

At this early state of the proceeding and without the benefit of documents that may be available to the parties in the YCJA proceedings, the Tribunal cannot fairly determine whether the allegations contained in the Application are timely in that they form part of a series of incidents within the meaning of section 34 of the Code.

10By letter dated March 23, 2011 from the Respondent Officers, the Tribunal was advised that a Court Order had been obtained from Youth Court providing access to documents from the YCJA proceedings involving the applicant. On April 21, 2010, the Respondent Officers filed a Response to the Application.

11On January 16, 2012, the Tribunal issued a Notice of Confirmation of Rescheduled Hearing indicating that a hearing would be held on October 16, 17 and 18, 2012.

12On July 6, 2012, the respondent, Michael Thomson, filed a Request for Summary Hearing, and, on July 13, 2012, the applicant filed submissions in response to the Request for Summary Hearing.

13On July 20, 2012, the Respondent Officers requested that the Tribunal issue a decision on their RFOP dated February 14, 2011 to dismiss certain allegations on the basis of delay.

14On July 20, 2012, the Respondent Officers also filed an RFOP to remove the individual respondents, Eckersall, Groff and Kellar. On July 24, 2012, the applicant filed submissions in response to this RFOP.

Case Assessment Directions

15In a Case Assessment Direction (“CAD”) dated August 30, 2012, the Tribunal denied the Request for Summary Hearing. The Tribunal proposed to address the issue of delay raised by the Respondent Officers, and provided the parties with an opportunity to make additional submissions on the issue of delay. The Tribunal indicated that the applicant and the respondents could provide additional written submission within seven and twelve days of the date of the CAD, respectively, if they wished to do so. The Tribunal also indicated that the October 2012 hearing dates remained as scheduled, but that the remaining delivery and filing requirements pursuant to the Tribunal’s Rules 16 and 17 were temporarily suspended.

16By email correspondence dated August 31, 2012, the Tribunal granted the applicant’s request for an extension of time to file submissions in response to the Tribunal’s August 30, 2012 CAD, to September 10, 2012. The deadline by which the respondents could provide submissions, in reply, was adjusted to September 17, 2012.

17On September 7, 2012, the Tribunal received submissions from the applicant, in response to the Tribunal’s August 30, 2012 CAD, addressing the issue of delay. On September 10, 2012, the Tribunal also received an RFOP from the applicant, seeking to amend the Application and adjourn the October 2012 hearing dates. The applicant also provided further submissions on the Respondent Officers’ July 20, 2012 RFOP to remove individual respondents.

18By email correspondence dated September 14, 2012, in response to the Respondent Officers’ request for an extension of time, the Tribunal granted all respondents an extension of time until September 28, 2012 to serve and file a Response to the applicant’s RFOP seeking to amend the Application and adjourn the October 2012 hearing dates. In a second CAD dated September 25, 2012, the Tribunal directed that the respondents could also file submissions in reply to the applicant’s September 7, 2012 submissions addressing the issue of delay, by September 28, 2012.

19In a third CAD dated October 5, 2012, addressing the applicant’s adjournment request, the Tribunal noted that the respondents all agreed that the hearing should be adjourned, and submitted that the Tribunal should instead hold a case management conference on October 16, 2012. Having regard to all of the circumstances of this particular case, the Tribunal determined that it was appropriate to adjourn the October 2012 hearing dates. The Tribunal directed that a telephone conference call be held on October 16, 2012, at which time the Tribunal could hear further submissions from the parties on the outstanding preliminary issues raised in their RFOPs, and address case management issues.

THE APPLICANT’S RFOP TO AMEND THE APPLICATION

20In his RFOP to amend the Application, the applicant refers to the Youth Court decision permitting disclosure of documents requested by the applicant under the YCJA. The applicant submits that he reviewed the disclosure, and that it clearly discloses a “series of events”. The applicant proposes to amend the pleadings to add allegations that were not part of the original pleadings because the documents were not available at the time the pleadings were drafted. The applicant attached an amended Application narrative to his submissions.

21In Response to the applicant’s RFOP to amend his Application, the Respondent Officers submit that the request should be denied as the additional allegations significantly expand the scope of the proceeding, and the new allegations raised in the amended Application are untimely. They also submit that the amended Application contains allegations that were not raised in the original Application and would prejudice the respondents. They submit that permitting the new allegations would require filing revised Responses and the submission of additional documentation and witnesses. Adopting the submissions of the Respondent Officers, the TPSB also opposed the applicant’s RFOP to amend his Application.

22Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

23In determining requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

24In this case, the proposed amended Application essentially repeats the allegations set out in the original Application, and provides some references to the content of documents which appear to have been subsequently obtained. The amended Application also contains new allegations concerning interactions with police officers on February 2, 2008, followed by four incidents alleged to have occurred over a year later: February 18, March 4, April 26, and August 15, 2009. References to the content of documents relating to these incidents are also included.

25In addition, the amended Application also refers to the content of twelve Field Information Reports (“Reports”) concerning the applicant that were obtained as part of the disclosure provided by the Youth Court. The amended Application refers to four Reports dated between February 2 and March 29, 2008, followed by eight Reports dated between February 18 and October 17, 2009. All of these Reports concern new incidents for which there are no corresponding allegations in the original Application.

26While the applicant refers to the allegations of discrimination in the proposed amended Application as constituting a “series of events”, the Respondent Officers submit that the new allegations expand across thirteen separate incidents and involve 25 additional police officers. I note that only one of the new allegations, concerning an event on February 18, 2009, involves a named individual respondent, PC Eckersall, who is also involved with respect to the January 5, 2010 allegation in the original Application.

27Clearly, permitting the RFOP to amend the Application would considerably expand the scope of the hearing, by adding numerous new allegations that respondents would be required to respond to at this late stage in the Tribunal’s process. The applicant submitted his RFOP to amend the Application in the context of responding to an issue of delay raised by the Respondent Officers concerning allegations in the original Application. At the time the applicant brought his RFOP, on September 10, 2012, the hearing was scheduled to commence in approximately five weeks, well beyond the disclosure deadline for arguably relevant documents in the Tribunal’s Rules. The RFOP was also brought more than two years after the original Application was filed, and the new allegations in the RFOP concern events between February 2, 2008, and October 17, 2009, between approximately four and a half years and nearly three years before the RFOP was filed.

28In addition, as the new allegations all concern events that pre-date the filing of the Application, they should have been known to the applicant at the time the original Application was filed. While the applicant may not have been aware of some evidence in support of his new allegations of discrimination until he received disclosure through Youth Court, it appears that disclosure was obtained through Youth Court in March 2011, at a much earlier stage in the Tribunal’s process, approximately a year and a half before the RFOP to amend the Application was brought.

29The Respondent Officers also raise prejudice, and, referring to the recollection or memory of officers involved in the new allegations, submit that the new allegations are related to incidents that occurred “years ago.” In my view, as the proposed amendments involve some 25 additional police officers and concern events alleged to have occurred between approximately four and a half years and nearly three years before the RFOP was filed, some prejudice to the respondent could result from the inevitable impact of the passage of time on witnesses’ memories.

30In my view, in all of the circumstances, it would not be fair, just and expeditious to allow the applicant’s RFOP to amend the Application. The applicant’s RFOP to amend the Application is dismissed.

DELAY

31Section 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

32The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

33In their February 14, 2011 RFOP, the Respondent Officers sought dismissal of the allegations in the original Application that fall outside the one-year limitation period in section 34(1) of the Code. They submit that the allegations that fall outside the one-year limitation period in the Code do not form a “series of incidents” with the more recent incidents alleged in the Application. They also submit that the applicant has not established a good faith explanation for the delay within the meaning of section 34(2) of the Code, in respect of these allegations. In particular, they submit that it appears from the Application that the applicant was knowledgeable about his legal rights and was in contact with a lawyer at the time. The respondents also submit that they would be substantially prejudiced by having to respond to the untimely allegations.

34In his February 17, 2011 response to the Respondent Officer’s RFOF concerning delay, the applicant submits that he was in the process of obtaining arguably relevant documents in Youth Court, and that it would not be fair to determine the respondents’ RFOP prior to a determination from the Youth Court regarding documents. In submitting that his allegations were a “series of incidents” within the meaning of the Code, that applicant essentially alleged that he had more than one encounter with one or more police officers, and that was the purpose for which documents were sought in Youth Court.

35Referring to the definition of “age” within the meaning of the Code, the applicant also asserted that he was a youth at the material time, and any limitation period should run from the time he was 18 years of age, as he had no prior standing to bring an Application on his own behalf.

36In its earlier Interim Decision dated February 25, 2011, the Tribunal dismissed the Respondent Officer’s RFOP, without prejudice to their ability to raise timeliness issues at a later stage in the proceeding. In so doing, the Tribunal stated that, without the benefit of documents that may be available to the parties in the YCJA proceedings, the Tribunal cannot fairly determine whether the allegations contained in the Application are timely in that they form part of a series of incidents within the meaning of the Code.

37The Respondent Officers again raised the issue of delay on July 20, 2012. In its CAD dated August 30, 2012, the Tribunal provided the parties with an opportunity to make additional submissions on the issue of delay. In particular, the Tribunal indicated that the parties should reference documentation obtained from the YCJA proceeding in support of their arguments on the issue of whether the allegations form a series of incidents.

38In his September 7, 2012 submissions addressing the issue of delay, the applicant essentially challenged the applicability of Tribunal jurisprudence addressing the meaning of a “series of incidents” under section 34(1)(b) of the Code in the context of employment and other relationships to racial profiling cases where events may occur over time. The applicant also submits that, in any event, a factual nexus is clearly established in his case over a series of events.

39In their September 28, 2012 submissions in reply, the Respondent Officers submit that the Tribunal’s jurisprudence with respect to what constitutes a “series of incidents” is general in nature, and capable of being applied to a case of racial profiling. Referring to the Tribunal’s decision in Millien v. Toronto Police Services Board, 2012 HRTO 1034, the respondents submit that the Tribunal has specifically dealt with what forms a series of incidents in the context of a case of alleged racial profiling by police.

40The parties did not provide further submissions on delay at the October 16, 2012 conference call.

41The Tribunal in Millien stated as follows, at para. 13:

In considering the meaning of the term “series of incidents” under s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457, at para. 25. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

42The applicant filed his Application on August 16, 2010 and the respondents’ appear to argue that the allegations that pre-date August 16, 2009 are untimely on their face. The applicant alleges that two police officers, including PC Kellar, arrested him at a subway station on October 27, 2007, in relation to an alleged theft of a cell phone, immediately after the incident where the alleged victim was present. He alleges that he was re-arrested on January 29, 2008, and charged with two counts of robbery. I note, however, that the respondents point to documentary evidence suggesting that the applicant was arrested and charged with two counts of robbery in relation to an October 27, 2007 incident on November 2, 2007.

43The timely allegations made in the original Application are that he was arrested for robbery at his school on January 5, 2010, by three police officers, including PCs Eckersall and Goff. He explains that he later learned that the individual respondent, Micheal Thomson, a security guard at Cedarbrae Mall, identified him as associated with individuals involved in an alleged offence at the mall on December 17, 2009.

44In the circumstances, I am not satisfied that the applicant has established that the earlier allegations in the original Application are of the same class as the timely incidents, so as to constitute a series of incidents within the meaning of the Code. While both incidents involve the applicant being charged with robbery, the incidents do not appear to involve the same individuals, and the timely allegations involve the alleged identification of the applicant to the police by a security guard at a mall.

45I also note that while the Tribunal’s February 25, 2011 Interim Decision states that at least one of the respondent police officers is alleged by the applicant to have been involved in both the October 2007 and January 2010 incidents, this does not appear to be the case based on a careful review of the allegations in both the original and the proposed amended Application, and the applicant’s current submissions on delay which reference the documents subsequently obtained through Youth Court. In addition, the applicant has not otherwise shown how the documents obtained through Youth Court establish that the untimely allegations in the original Application constitute a series of events, within the meaning of the Code, with the allegations that are timely. In my view, the applicant has not demonstrated that the untimely allegations in the original Application are sufficiently connected to the timely allegations. Rather, the untimely allegations appear to be more in the nature of discreet and separate events from the timely allegations.

46Furthermore, the untimely allegations relate to incidents alleged to have occurred approximately two years prior to the allegations in the Application that are within the one-year time limit in section 34 of the Code. With respect to a “series of incidents” and timing, the Tribunal stated in Sutherland v. District School Board North Ontario East, 2010 HRTO 2270, at para. 20, that “there is a clear legislative expression of intent in section 34 that human rights complaints ought to be brought expeditiously and that significant gaps in time between alleged incidents in a series will interrupt the series.” The Tribunal in Sutherland also stated as follows with respect to section 34 of the Code, at para. 23:

The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be shorter. The common sense meaning of a “series of incidents” suggests a number of related or similar events occurring in temporal order or succession. It is not clear to me that incidents occurring 12 months or more apart can be said to be occurrences in temporal order or succession except in unusual circumstances. This is no less so when the claim is that the incidents created a hostile or poisoned environment.

47Considering all of the circumstances, including the lengthy gap in time between the untimely allegation and the remaining allegations in the original Application, I do not find that the allegations in the Application pertaining to alleged events between October 2007 and January 2008 form a “series of incidents”, within the meaning of the Code, with the other allegations in the Application that are timely.

Additional issue with respect to delay

48I have determined that the earlier allegations in the original Application do not constitute a series of incidents with the timely allegations in the Application. However, it appears to the Tribunal that there may be an issue as to the appropriate application of the provisions addressing delay in section 34 of the Code where an applicant was a minor at the time of the alleged discriminatory incidents, and does not appear to have been represented by a litigation guardian at any time.

49While it appears that this issue was briefly raised by the applicant in his earlier February 17, 2011 submissions on delay, in my view, it was not clearly raised, and none of the parties, including the applicant, have addressed this issue in their more recent submissions on the issue of delay.

50In the circumstances, the Tribunal determines that it is appropriate to seek further submissions from the parties, as set out below, on whether the one-year time period in section 34 of the Code, in the case of a minor not represented by a litigation guardian, begins to run when the minor turns 18, by virtue of legislation, such as the Limitations Act 2002, S.O. 2002, c.24, or by virtue of common law. The parties should provide submissions on whether section 6 of the Limitations Act, 2002 applies to section 34 of the Code. The parties should also provide submissions that address whether there is a broader common law principle that limitation periods do not run during the time an individual is a minor and if so the application of any such common law principles to section 34 of the Code. The parties should also address “good faith” within the meaning of section 34(2) of the Code, where the applicant was a minor at the time of the alleged incidents of discrimination.

CONCLUSION AND NEXT STEPS

51The applicant’s RFOP to amend the Application is dismissed.

52This matter is scheduled for mediation on January 16, 2013, and a hearing is scheduled for March 5, 6 and 7, 2013.

53If this matter is not resolved at mediation, the Tribunal seeks further submissions from the parties on the issue of delay, as set out in paragraph 50, above, as follows:

a. The applicant may deliver and file submissions by no later than January 28, 2013;

b. The respondents may deliver and file submissions in response by no later than February 11, 2013; and,

c. The applicant may deliver and file submissions in reply, if any, by no later than February 18, 2013.

54The Respondent Officers’ RFOP to remove individual respondents will be addressed after mediation if the matter is not resolved.